By: State Senator Katy Ives – June, 2016
In May, the Massachusetts Legislature approved legislation that seeks to enhance government transparency and accountability by providing residents with greater access to public records and imposing penalties for non-compliance with public records requests.
I re-filed a piece of legislation this session, co-sponsored by Representative Diana DiZoglio, in an effort to make our public records law more responsive to residents’ legitimate requests for information about their government. In the prior legislative session, I filed this bill on behalf of Valley Patriot publisher, Tom Duggan.
Some concepts from that bill were echoed in House Bill 4333, “An Act to Improve Public Records,” the finalized public records reform bill approved by the legislature, which streamlines the process of requesting records, delineates a clear process for the timely response to records requests, and puts teeth in the law to demand enforcement.
The bill would require state government entities and municipalities to designate a Records Access Officer, with contact information conspicuously posted, to assist members of the public with records requests. The legislation would also impose clear limits on the time government entities have to comply with requests, reduce the cost to the public of requesting records, and improve and enhance enforcement mechanisms.
House Bill 4333 would require any government entity to furnish the record requested no later than 10 business days after a request is made, provided that (i) the requestor reasonably describes the public record sought, (ii) the record is within the custody and control of the records officer and (iii) payment of a reasonable fee is received.
If an agency or municipality is unable to comply within 10 business days, the requestor must be sent a written response identifying the records, providing specific reasons for withholding, or identifying a reasonable timeframe in which the agency will produce the record. The timeframe for eventually producing the records must not exceed 15 business days following the initial request to any agency, and 25 business days following the request to a municipality.
A government entity may charge a reasonable fee for records, which cannot exceed the actual cost of reproducing the record. The bill limits the cost to produce standard black and white copies to 5 cents per page. Additionally, state agencies may charge an hourly rate after the first four hours of labor equal to the rate of the lowest paid employee capable of completing the request, but that rate must not exceed $25 per hour. Municipalities with populations greater than 20,000 residents may begin to charge an hourly rate after two hours of labor. No charge shall be made for redacting and segregating unless required by law.
The bill would also allow a superior court to award reasonable attorney fees to requestors who seek and obtain judicial relief after their request for public records was not completed. There is a presumption of an award of fees and costs unless (1) a municipality or agency establishes that there was no violation of the chapter, (2) that there was reasonable reliance on a published decision of the appellate court or the attorney general, (3) there is an intention to harass or intimidate or (4) if the request was not in the public interest or was made for a commercial purpose unrelated to disseminating information to the public. If the court determines fees and costs are not warranted, the judge must issue written findings explaining the decision.
Courts are also permitted to award punitive damages between $1,000 and $5,000 when the court finds an agency or municipality did not act in good faith in responding to a request. The fines would be deposited in the Public Records Assistance Fund, which the bill establishes to support improvements to municipal information technology capabilities.
With Governor Baker’s signature, the bill will become law and Massachusetts will take an important and long overdue step in the right direction toward greater government accessibility.
Senator O’Connor Ives can be reached at KATHLEEN.OCONNORIVES@MASENATE.GOV .